Green Room

Could Rosen warrant endanger prosecution of leaker?

posted at 2:39 pm on June 5, 2013 by

Bear in mind that the warrant application for Fox News’ James Rosen attempted to get unlimited access to Rosen’s e-mail and phone records, on the basis that he too was a potential prosecution target as a co-conspirator to espionage.  Now the Department of Justice, in its haste to protect Eric Holder from a perjury charge, says the warrant is immaterial to his statements to Congress because the DoJ never intended to prosecute Rosen despite the representation made in the warrant.  They wanted to go after the leaker, Stephen Jin-Woo Kim.  However, Kim’s attorney hinted that the false claim in the warrant might be cause to toss out the evidence gleaned from that warrant:

Kim’s case is still many months away from trial, lawyers said Tuesday, in part because of what the judge called the “glacial” pace of sharing information and in getting it declassified by the intelligence community.

Add another complication: Attorney General Eric Holder personally approved a search warrant for information from Rosen, the Fox reporter, that characterized him as a “co-conspirator.” But after a media uproar, the Justice Department said it never had any intention of prosecuting him over the leak.

Lowell told the judge he was inspecting the materials about how the search warrants in the case were reviewed and approved, because there are indications that they might not have been approved properly. If so, Lowell said, he would be making a motion to suppress those materials.

If Lowell makes that motion, it will be very interesting to see how the DoJ responds to it.  Will they argue that Eric Holder made a good-faith representation in his claim that Rosen might be prosecuted?  If so, then the perjury case gets stronger against Holder.  If not, they may well lose the case all of these machinations were made to produce.

Update: I consulted our good friend Gabriel Malor at Ace, who doesn’t believe this will amount to anything:

First, no one is suggesting that the warrant was substantively incorrect. It has all those details that one would expect and that did, in fact, persuade a judge that there was probable cause to believe incriminating evidence could be found in the emails in question.
Second, no one is suggesting that the warrant was procedurally incorrect. It was filed correctly, went to the judge, etc. So no defect there.
What Kim’s lawyer is suggesting is that there could be a lie in the warrant, presumably the part about having cause to believe that Rosen was a conspirator in leaking. But we know pretty conclusively at this point that Rosen was a part of such a conspiracy! That AG Holder later disclaimed an interest in “potential prosecution” of Rosen does not alter the fact that Rosen did encourage the leak.
Prosecutorial discretion is at the heart of law enforcement. It is inherent in our idea of justice that sometimes, in special circumstances lawbreakers go unprosecuted. I doubt a judge would look with favor on a suppression motion that ultimately boils down to the notion that Kim shouldn’t be prosecuted because Rosen wasn’t.

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Oh the tangled web we weave when first we practice to deceive.

KW64 on June 5, 2013 at 3:07 PM

Ruh roh

Tee hee

cmsinaz on June 5, 2013 at 3:08 PM

Parr for the course with this administration. The law of unintended consequences follows them like a black cloud.

antipc on June 5, 2013 at 3:29 PM

In an “were you lying then or are you lying now” type scenario about conflicting statements, a trial judge is going to assume Holder was lying in front of Congress and find the warrant valid.

Anyway, the issue really is that essentially Holder was lying in front of Congress, not that the person who drafted the affidavit was lying.

Nessuno on June 5, 2013 at 5:34 PM

Yes and no here. I’ve seen judges “spank” the prosecution for being overzealous by sh**canning their whole warrant process and evidence. Especially since we’ve learned that the DOJ outright lied and then went judge shopping and the “leak” was small time at best, again another lie.

At some point judges tend to remind lawyers who is boss and who doesn’t like being made a fool of.

If the warrant lead to evidence that lead to a confession and the evidence would not have been found out by other lawful means, it could find its way to the trash.

archer52 on June 5, 2013 at 5:36 PM

To follow up…The other travesty here is, of course, that the Obama admin is willing to criminalize normal reporting activity (or claim it is criminal) in the pursuit of politically damaging leakers.

But, strictly speaking, the law can be seen to criminalize some of what Rosen did, even if applying it that way is abhorrent.

Nessuno on June 5, 2013 at 5:36 PM